Citation Nr: 0326954
Decision Date: 10/09/03 Archive Date: 10/20/03
DOCKET NO. 95-38 084 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUES
1. Entitlement to an increased rating for bilateral pes
planus.
2. Entitlement to service connection for low back
disability.
3. Entitlement to service connection for disability of the
legs and knees.
4. Entitlement to service connection for headaches on a
secondary basis.
5. Entitlement to service connection for residuals of
exposure to radiation, to include a lesion of the left
buttock.
6. Entitlement to service connection for depression on a
secondary basis.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Trueba-Sessing, Counsel
REMAND
On May 1, 2002, the Board of Veterans' Appeals (BVA or Board)
ordered further development in your case. Thereafter, your
case was sent to the Board's Evidence Development Unit (EDU),
to undertake the requested development.
Prior to May 1, 2003, the Board's regulations provided that
if further evidence, clarification of the evidence,
correction of a procedural defect, or any other action was
essential for a proper appellate decision, a Board Member or
panel of Members could direct Board personnel to undertake
the action essential for a proper appellate decision. See 38
C.F.R. § 19.9(a)(2) (2002).
However, on May 1, 2003, the United States Court of Appeals
for the Federal Circuit ("Federal Circuit") invalidated 38
C.F.R. § 19.9(a)(2), in Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003)
(hereinafter "DAV"). The Federal Circuit held that 38
C.F.R. § 19.9(a)(2), in conjunction with the amended rule
codified at 38 C.F.R. § 20.1304, was inconsistent with 38
U.S.C. § 7104(a), because 38 C.F.R. § 19.9(a)(2), denies
appellants "one review on appeal to the Secretary" when the
Board considers additional evidence without having to remand
the case to the agency of original jurisdiction (AOJ) for
initial consideration, and without having to obtain the
appellant's waiver.
Following the Federal Circuit's decision in DAV, the General
Counsel issued a precedential opinion, which concluded that
DAV did not prohibit the Board from developing evidence in a
case before it, provided that the Board does not adjudicate
the claim based on any new evidence it obtains unless the
claimant waives initial consideration of such evidence by
first-tier adjudicators in the Veterans Benefits
Administration (VBA). VAOPGCPREC 1-03. Based on this
opinion, the Board continued, for a short time, to request
development via the Board's EDU.
Recently, in light of the Federal Circuit Court's decision
and other policy considerations, the Department of Veterans
Affairs (VA) determined that VBA would resume all development
functions. In other words, aside from the limited class of
development functions that the Board is statutorily permitted
to carry out, see 38 U.S.C.A. §§ 7107(b), 7109(a), all
evidence development will be conducted at the regional office
(RO) level.
In the event that you appeared at a hearing before a Veterans
Law Judge (VLJ) other than the VLJ signing this remand, be
advised that if your case is returned to the Board, it will
be reassigned to the VLJ who conducted your hearing.
Accordingly, this matter is REMANDED to the RO for the
following:
1. Ascertain that all the medical
records from the private health care
providers listed in the VA forms 21-
4142 (Authorization and Consent to
Release Information to the Department
of Veterans Affairs) submitted by the
veteran in September 2002 are contained
within the claims files. If the
records are not available, the claims
files should be properly documented in
this respect. The RO is requested to
review the case to ensure compliance
with the VCAA, 38 U.S.C.A. §§ 5103,
5103A (West 2002); 66 Fed. Reg. 45,630-
45,632 (Aug. 29, 2001) (codified as
amended at 38 C.F.R. § 3.159).
2. Make arrangements with the
appropriate VA medical facility for the
veteran to be examined by a physician
with appropriate expertise to determine
the nature, extent and etiology of each
currently present disorder of the back,
legs, and knees. The claims folders,
to include any additional evidence
secured, must be made available to and
reviewed by the examiner prior to
completion of the examination report,
and the examination report must reflect
that the claims folders were reviewed.
Any indicated studies should be
performed.
Based upon the examination results and
a review of the claims folders, the
examiner should provide an opinion with
respect to each currently present
disorder of the back, legs, and knees
as to whether it is at least as likely
as not that the disorder originated
during active service, is otherwise
etiologically related to active
service, or was caused or chronically
worsened by the veteran's service-
connected pes planus disability. With
respect to any disorder the examiner
believes was chronically worsened by
pes planus, the examiner should attempt
to identify the extent of disability
due to aggravation. The rationale for
each opinion expressed should also be
provided.
3. Make arrangements with the
appropriate VA medical facility for the
veteran to be examined by psychiatrist
to determine the nature, extent and
etiology of each currently present
acquired psychiatric disorder. The
claims folders, to include any
additional evidence secured, must be
made available to and reviewed by the
examiner prior to completion of the
examination report, and the examination
report must reflect that the claims
folders were reviewed. Any indicated
studies should be performed.
Based upon the examination results and
a review of the claims folders, the
examiner should provide an opinion with
respect to each currently present
acquired psychiatric disorder as to
whether it is at least as likely as not
that the disorder was caused or
chronically worsened by the veteran's
service-connected pes planus. If the
examiner believes that any psychiatric
disorder was aggravated by pes planus,
the examiner should attempt to identify
the extent of disability due to
aggravation.
4. Make arrangements with the
appropriate VA medical facility for the
veteran to be afforded an examination
by a podiatrist to determine the
current degree of severity of his pes
planus. Specifically, the examiner is
requested to characterize the veteran's
pes planus as mild, moderate, severe,
or pronounced. He or she is also
requested to note with respect to each
foot whether there is evidence of
marked pronation, extreme tenderness of
the planter surfaces, marked inward
displacement and severe spasm of the
tendo Achilles on manipulation, not
improved by orthopedic shoes or
appliances.
The examiner should also assess any
functional impairment due to weakened
movement, excess fatigability, or
incoordination attributable to the
service-connected disability, as well
as functional impairment due to pain,
during flare-ups and on repeated use.
The examiner should also be requested
to provide an opinion concerning the
impact of the disability on the
veteran's ability to work. The
veteran's claims folders must be made
available to and reviewed by the
examiner.
The rationale for all opinions
expressed must be provided.
5. After the development requested
above has been completed to the extent
possible, the RO should again review
the record. If any benefit sought on
appeal remains denied, the appellant
and representative, if any, should be
furnished a supplemental statement of
the case and given the opportunity to
respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
STEVEN L. KELLER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).